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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 361 The most prominent question discussed upon the argument of these causes, and that which should first be determined, is, whether the legal estates given by the sixteenth clause of the will to the two sons of the testator, and the trust *Page 362 estates created for the benefit of his three daughters and their issue, take effect in actual enjoyment immediately on the death of the widow, or whether a trust term is created, to continue from the death of the widow until the completion of the division of the testator's residuary estate, during which term the title to the property is vested in the trustees.
It is clear that, if such a trust term is created, or even if the ownership of the property is suspended during that interval, the dispositions of the will created an illegal suspension of the power of alienation of the real estate, and of the absolute ownership of the personal property; for, until the expiration of that indefinite period, not measured by human life, the persons in whom the estates or interests will vest cannot be ascertained, and they may be persons not in being at the death of the widow.
It is claimed, on the part of the respondents, that, according to the terms of the will, a trust was created, to commence at the time of the death of the widow, to appraise, sell, and divide the property, and that the intention of the testator and the legal effect of the will were to vest the entire estate in the trustees, and render it inalienable while that trust was being performed; and it has been urged that it was a part of the testator's scheme that, during the continuance of that trust estate, the entire income of the property should be accumulated for the benefit of those of his descendants who might be in being when the division should be completed.
Such an intent would be manifestly illegal, and, unless clearly expressed, will not be implied or imputed to the testator. (Dubois v. Ray, 35 N.Y., 165, 167, 175; Keilly v. Fowler, Wilmot's Opinions, 298; Tucker v. Tucker, 1 Seld., 408;Post v. Hover, 33 N.Y., 601.)
Upon a careful examination of the whole will, we are unable to discover any expression of an intention, on the part of the testator, to create such a trust term, or to direct such an accumulation.
No trust or power in the executors to receive or apply the rents and profits after the death of the widow is to be found *Page 363 in the will, except as to the shares directed to be set apart for the daughters respectively.
There is a general devise of the residuary estate to the executors in trust for the uses and purposes set forth in the will; but such a general devise in trust vests the legal estate in the trustees only for such legal purposes as require it to be vested in them, and in other respects it is inoperative. (DeKay v. Irving, 5 Denio, 653; Downing v. Marshall,23 N.Y., 366, 380, 381; Everitt v. Everitt, 29 id., 78, 79, 82.)
Until we come to the trusts created for the benefit of the daughters, the only trust or authority to receive or apply the rents or income is, "to collect and receive the rents, issues, income, dividends and interest of said residuary real and personal estate, and to use and apply the same, during thelifetime of my wife, as follows."
All right or power under this clause to receive the rents would cease at the death of the widow. Even if it could be doubted whether the words, "during the lifetime of my wife," expressly apply to and limit the duration of the authority to receive the rents, etc., there can be no doubt that they do expressly limit the time during which they are directed to be applied; and when a trust is created to receive and apply rents, the trust to receive them, though the period of its duration be not defined in the instrument, is, by operation of law, limited to the period during which they are directed to be applied.
There being no direction for the application of the rents and profits during the time to be consumed in the appraisement and division, no trust to receive them during that time can be implied; and none having been expressly given, the consequence is, that, during that period, they are undisposed of, unless the legal estate of the sons and the trust estates for the daughters take effect, and the sons and the trustees for the daughters are entitled by virtue thereof to possession of the property at the death of the widow of the testator.
The trust during the alleged interval is, therefore, a naked trust to cause to be appraised, to sell, and to divide into shares, *Page 364 unaccompanied by any right in the trustees to receive the rents and profits.
The trust to sell is one of those authorized by the statute, but, if unaccompanied by the right to receive the rents and profits, it vests no estate in the trustees, though it is valid as a power. (1 R.S., 729, § 56.)
The trusts to appraise, divide and convey the shares are not authorized by the statute, but are proper subjects of a power, and are not void because the testator has attempted to put them in the form of trusts, but can be executed as powers (1 R.S., 729, § 58; Downing v. Marshall, 23 N.Y., 380, 381.)
The will which was construed in the case of De Kay v.Irving (5 Denio, 649), closely resembles the one now under consideration. It contains the same features of a direction to apply the rents and profits to the support of the testator's family while his estate is undivided, a power of sale, a direction to cause to be appraised and to divide into shares, which can only be ascertained by means of the appraisement, and which are to include designated pieces of property, and a general devise of the whole estate to the executors in trust to carry into effect the purposes of the will. But it was decided by the Court of Errors that, notwithstanding this gift in trust, the executors took no estate except for the purposes which required that the title be vested in them; that, therefore, they held in trust during the life of the widow, for the purpose of the application of the rents and profits up to the time appointed for the partition, if she should so long live; but that the direction to make partition did not require the title to be vested in the executors, as it might be performed by the exercise of a naked power, and created no suspense of the power of alienation; and the decree of the chancellor sustaining the will was affirmed. (See opinion of BEARDSLEY, J., p. 654, Downing v. Marshall,23 N.Y., 380.)
Upon the same principle, in the present case, no estate will vest in the trustees during the time to be employed in making the partition, but the supposed trust to make partition can be performed in the exercise of a power. *Page 365
The objection that the time to be consumed in making the partition may be indefinitely protracted, is applicable to every case where such a power is given, and the effect of such delay upon the validity of the disposition depends in this, as in all similar cases, upon the solution of the next question which is to be considered, viz.: whether, during that time, the ownership is suspended, or whether the estates of the sons and of the trustees for the daughters are vested interests and will become indefeasible on the death of the widow; for if the estates are thus vested the undivided shares of the sons will, at the widow's death, at once become alienable, and while the partition is being made the lives will be running, during which the suspension caused by the trusts for the daughters and their issue can lawfully continue, and no suspension of the power of alienation will be caused by delay in the partition.
Should there be any unreasonable delay in making the partition, there can be no doubt that a court of equity would have power to enforce the performance by the trustees of their duties, and, if necessary, to appoint others to perform them; and this jurisdiction is ample, even to provide a remedy in case the surrogate should refuse to appoint an appraiser. (Lewin on Trusts 526, 694-697; Sugden on Powers, 8th Ed., p. 50; 2 Story's Eq., § 1061; People v. Norton, 9 N.Y.R., 176; De Peyster v.Clendining, 8 Paige, 310.)
Having disposed of the supposed estate of the trustees, we return to the question: In whom must the testator be deemed to have intended the right to the enjoyment of the estate to vest on the death of the widow?
In approaching that question, and before referring to the language of the gifts to the sons and to the trustees for the daughters, and determining their legal effect, it is proper to advert to some considerations which are suggested by the absence of any specific disposition of the rents and profits of the estate from the time of the death of the widow to the completion of the partition. This omission, so far from indicating an intention to postpone the taking effect of the gifts *Page 366 of the shares to the sons and for the daughters, is quite consistent with the opposite intention, and it is difficult, if not impossible, to reconcile it with any other.
If these gifts took effect in actual enjoyment immediately upon the death of the widow, it was wholly unnecessary to make any mention of the rents and profits from that time forth, except as they are mentioned in the trusts for the daughters; for, while the appraisement and division were being made, the sons and the trustees for the daughters would be vested with the title to the whole property as tenants in common, and would receive the income of their respective undivided shares while the shares were being ascertained and separated. But if those gifts were not to take effect until after the completion of the division, and it was contemplated by the testator that any considerable time might elapse, or that changes of interest might occur during that process, some provision in regard to these rents and profits was indispensable to conform the disposition of these rents to the general scheme of the will.
To hold that the testator intended that they should be accumulated during that period, would not only be to attribute to him, by implication, an unlawful intent, but one which is at variance with the manifest design of the testator to provide for the support of his children. Such a construction would leave them wholly unprovided for during the supposed interval. No such intention is expressed or can reasonably be implied; while to hold that he intended to leave these rents undisposed of and to be divided among his heirs-at-law, according to their interests as such, would conflict with his clearly disclosed intention to give a preference to his sons in the amounts of their shares.
The arguments which have been urged for the purpose of showing that the testator expected and intended that the process of division should be protracted for a long period, if they were well founded, would only add to the improbability of his having intended that the enjoyment of the undivided shares should be suspended during that period. *Page 367
By reference to the language of the gifts of these shares, it will be seen that each share is given by words of present gift. In respect to the sons the words are: "And upon the further trust to convey, transfer and pay over to my son William De Forest Manice in fee simple, to whom I give, devise and bequeath thesame, or in case of his death to his then living lawful issue, three of said equal twelfth parts.
* * * * * * * And upon the further trust, to convey, transfer, and pay over to my son Edward Augustus Manice in fee simple, and I give,devise and bequeath the same to him, or in case of his death prior to the time of such distribution, to his then living lawful issue, three of said equal twelfth parts." * * *
In respect to each of the daughters the words are: * *
"And upon the further trust, to retain and hold as trustees under this my will, and I give, devise, and bequeath to themaccordingly, two other of said equal twelfth parts, in trust," etc.
These clauses immediately follow that which commences with the words: "And upon the further trust, upon the death of my wife, to cause to be appraised," etc.
Thus it will be seen that the testator in each case makes a present gift directly to each of his sons or their issue, and to trustees for each daughter, of a specified share of his residuary estate, to be ascertained and meted out to them respectively by the executors, pursuant to the process which he has prescribed.
The estates of the donees are future estates limited upon the precedent estate of the trustees for the life of the widow. It is claimed by the respondents, that the vesting of these estates is postponed after the death of the widow until the completion of the division, and that the donees and beneficiaries of the trusts are not the sons and daughters or their issue living at the death of the widow, but those of them who shall be living when the division is completed.
It has already been shown that during this alleged interval to be occupied in the division, no estate can vest in the trustees; and the necessary consequence is that unless the estate is *Page 368 vested in undivided shares to the donees, among whom the property is directed to be divided, it is wholly undisposed of from the death of the widow until the completion of the division, and the result of that construction is that these gifts are merely executory devises, to unascertained persons, to take effect at an indefinite future period not measured by life.
It has been established by a long series of decisions, that no such unreasonable intent will be imputed to a testator, unless so clearly and unequivocally expressed that no other construction can be placed upon his language. The court never construes a limitation into an executory devise when it may take effect as a remainder, nor a remainder to be contingent when it can be taken to be vested. (6 Cruise Dig., 444, § 11; 3 T.R., 488, Ives v.Leggett note.) And it may be laid down as a general rule that where, by a will, shares or interests in real or personal estate, to be ascertained by a divison, are given, or where the real estate is directed to be sold and the proceeds divided, the estate or interest of the devisee or legatee in the property to be divided or converted, is a vested interest before the conversion or division, and that limitations over to take effect in case of the death of those first designated prior to the division or sale, must be held to refer to the time appointed for the division or sale, and not to the period of their completion, unless the language of the will clearly and unequivocally expresses an intention that the vesting shall be postponed until such completion.
If the intention is unequivocally expressed, effect must be given to it (Elwin v. Elwin, 8 Ves., 547); but such an intention will not be imputed to the testator if it can be avoided. (Roper on Legacies, 561, 8th ed.; Pearson v. Lane, 17 Ves., 101; Collin v. Collin, 1 Barb. Ch., 630; Clason v.Clason, 6 Paige, 541; S.C., 18 Wend., 369; Haydon v. Rose, L.R., 10 Eq. Cas., 224.)
A similar rule is applied to gifts of shares or legacies to be paid out of a fund or surplus to be collected in or ascertained and divided, and in those cases the interests of the legatees are held to vest absolutely before the fund is collected, or the *Page 369 surplus ascertained, or division actually made; and it is held that a limitation over to take effect in case of the death of the legatee before he has received his share, does not take effect, if the legatee lives to become entitled to it, though he die before it has been paid. (2 Jarman on Wills, chap., 20, § 3, p. 539, 2d Am. ed.; Gaskell v. Harman, 6 Ves., 159, and S.C. on Appeal, 11 Ves., 490; Wood v. Penoyre, 18 Ves., 325, In reArrowsmith's Trusts, 2 De Gex, Fisher and Jones, 474; Hutchin v. Mannington, 1 Ves., 366.) And this rule was applied in its full force to the case of a mixed fund of realty and personalty. (Martin v. Martin, L.R., 2 Eq. Cas., 404.) And where the terms of a bequest import a gift, and also a direction to pay at a subsequent time, the legacy vests and will not lapse by the death of the legatee before the time for payment has expired, but will pass to his personal representatives. (Traver v. Schell,20 N.Y., 89; Everitt v. Everitt, 29 N.Y., 39.)
In De Kay v. Irving, the remainder after the expiration of a trust term was directed to be divided among four children, and a grandchild in a specified manner. The whole estate was given to the executors in trust to carry into effect the directions and provisions of the will. They were to ascertain and settle the shares. Those shares, as in the present case, were to be dependent upon an appraisement to be made prior to the division into parts, and specific parcels of the real estate were directed to be allotted to particular donees.
Every element of uncertainty as to the amounts or identity of the shares which exists in the present case existed in that. Until the division should be completed, neither of the parties could know whether he would possess in severalty any particular piece of property. Yet it was held that there was no suspension of the power of alienation. This conclusion must necessarily have been based upon the ground, that the children and grandchild had a vested estate in remainder in the lands and property directed to be divided. On no other ground can the judgment in that case be made to stand. The uncertainty as to the shares is no obstacle to such a vesting; *Page 370 a vested estate can exist in an undivided share as well as in a specific piece of land; and it is not necessary that the share should be ascertained by separation, provided the rule for its ascertainment is established. The doctrine laid down in the head note to Curtis v. Lukin (5 Beavan, 147), that "a gift must not only vest within the time limited by the rule against perpetuities, but the interests of the respective parties in the property must be capable of ascertainment within that period," is not in conflict with this principle. It is not necessary that the shares should be actually ascertained and set off in severalty; is sufficient that the interests are vested and capable of ascertainment. The objection in Curtis v. Lukin, was not that partition was necessary to ascertain the shares, but that an indefinite sum was to be taken out before partition, and that the amount thus to be taken out could not be ascertained within the time allowed by law for suspension of ownership.
But for the alternative provisions in this will, providing for the contingencies of death of sons or daughters before the division, there can be no doubt that an indefeasible estate in remainder was created by the will in favor of each son, which vested in him immediately upon the death of the testator, and which would pass to his heirs or assigns if he died, or conveyed before the death of the widow, and that a future estate for a new trust term was given to the trustees for each daughter. These remainders were limited upon the prededent trust estate for the life of the wife, and upon her death, each would be seized and possessed of an undivided interest in the realty and personalty, subject only to the exercise of the power of division and sale given to the executors. (1 R.S., 729, §§ 56 and 58; Irving v.De Kay, 5 Denio, 646.)
The effect of those alternative provisions remains to be considered in this connection.
The gift to the son William is made to him by name, and the direction is to convey to him, or in case of his death to histhen living lawful issue. This gift immediately follows the clause beginning with the words: "And upon the further *Page 371 trust upon the death of my said wife to cause to be appraised," etc.
If it clearly appeared in the will, that the testator contemplated changes of interest by the death of his son intermediate the death of the widow and the partition and conveyance of the share by the trustees, there would be strong ground for the argument that the term "then living" was intended to apply to the time of the conveyance of the share by the trustees, and to defeat the estate given to the son in case he should die before the actual ascertainment of the shares, though he might be living at the death of the widow. But in the absence of any expressions in the will, showing that such a change of interest was contemplated, and in view of the confusion and illegality which would result from so construing the will as to regard the testator as having intended to defeat the estate given to his son in that contingency, and paying due regard to the authorities heretofore cited, which forbid such a construction where any other is possible, we are led to the conclusion that although, literally construed, the language of the testator is consistent with the theory of the respondents, yet it is also consistent with the view that the testator contemplated the appraisement, division, and conveyance of shares as a single act to be done immediately upon the death of the widow; that he did not undertake to measure or provide for the time which might be occupied in effecting the partition, but in all his dispositions assumed that the parties living at the death of the widow, and those who were to receive the shares in severalty would be the same, and that he intended that their estates and interests should become absolute on the widow's death.
The numerous special provisions as to the income which would have been necessary, as has already been shown, to secure a consistent operation of the testator's general scheme, in case he had contemplated any such change of interest pending the partition, and the absence of any such provisions, are strong evidence that no such change was in his mind. And we think that the intention of the testator can only be *Page 372 effectuated by construing the various provisions, in case of the death of his sons and daughters, as applicable to their death before the time appointed for the division, and the estates as indefensible, if they live until that time.
This construction can be sustained and effect thereby given to the intentions of the testator by the application of the rule that equity looks upon that as done which ought to have been done, and will treat the subject-matter as to collateral circumstances and incidents in the same manner as if the contemplated act had been performed exactly as it ought to have been done. By the application of this principle to agreements, acts agreed to be done are considered as done at the time agreed upon; and by its application to wills, acts lawfully directed to be done are regarded as done at the time directed. On this principle rests the doctrine of equitable conversion. (1 Story's Eq. Jur., § 64, g.; 2 id., §§ 790, 1212, 1214; Lorillard v.Coster, 5 Paige, 218; Bunce v. Vander Grift, 8 Paige, 37, 40; Craig v. Leslie, 3 Wheat., 577; 1 Fonblanque's Eq., 419, 420, bk. 1, chap. 6, § 9, 4th Am. ed.; Fletcher v. Ashburner, 1 White Tudor's Leading Cases in Eq., 3d Am. ed, notes, p. 808;Kane v. Gott, 24 Wend., 660; Sugden on Vendors, chap. 4, § 1; chap. 16, § 1; Lewin on Trusts, 793.)
Under the operation of this rule, the rights of those who might succeed the testator's children in case of their death pending the partition, would be the same as if the partition had been completed immediately upon the widow's death, and they would take by descent from those living at the widow's death, and not as purchasers.
In the case of Edward Augustus, the language is somewhat different. It is, "and I give, devise and bequeath the same to him, or, in case of his death prior to the time of such distribution, to his then living lawful issue."
This language is quite reconcileable with the idea that the time of distribution referred to by the testator was the time he had appointed for the distribution, and that all rights were to become fixed at that time. *Page 373
The next provision is, "and in case of the decease of either of my said sons prior to such division, having no lawful issue living at the time of such division, then my surviving son, or, in case of his death, his lawful issue then living, shall take," etc.
Similar language has already been judicially construed by the Court of Errors of this State in the case of Clason v. Clason (18 Wend., 369). BRONSON, J., in delivering the opinion in that case, says: "I think Isaac Starr Clason took an absolute fee at the end of the term of twenty years from the death of the testator; that by the words `before a division shall be made,' and `before such division shall be made,' in the clauses which dispose of the estate in the event of the death of one or more of the sons, the testator did not intend an actual partition of the property, but referred to the time which he had already appointed for making the division."
And to the same effect is the late case of Haydon v. Rose (L.R., 10 Eq. Cas., 224). In the devises in trust for the daughters, the expression is, "time of said distribution," and in conformity with the decisions cited, must be construed as referring to the death of the widow. A criticism is made upon the language of the clause directing an appraisement to precede the division of the property into shares; and it is said that the time appointed for the division was after the appraisement, and not upon the death of the widow. We think that this would not be a reasonable construction of the language, but that the appraisement was only one of the steps in the division, and that the testator intended to include all these proceedings in the general term, division or distribution of his estate, as used in the subsequent clauses of the will.
Our conclusion is, that, there being no trust estate inter posed between the death of the widow and the estates given to the sons and the trustees for the daughters, those persons would, in case of the death of the widow, have an immediate right to the possession in severalty of the lands specifically directed to be included in their shares, and to the possession and enjoyment as tenants in common of the residue of the *Page 374 real estate and of the personal property, subject to the powers of sale and division contained in the will; that each of the trust estates created for the benefit of the daughters is a future estate in trust, limited upon the trust for the life of the wife; and that the direction to retain, together with the gift of the share to the trustees, creates a new estate in them, commencing from the death of the widow, in the same manner as if new trustees had been appointed to take for the benefit of the daughters; that, upon the death of the widow, the remainders to the sons or to their issue then living will become indefeasible, and the estates of the trustees for the daughters and their issue, or such of them as may be living, will also become indefeasible until the expiration of the trusts; and that, if the terms of any of said trusts shall have expired before the death of the widow, those shares will thereupon go to the issue of the daughters, or to the testator's heirs-at-law, as directed by the will.
The next question to be considered is the validity of the trusts to accumulate the income of the sub-shares during the minority of the issue of the daughters, and of the limitations over of those shares in case of the death of such issue in infancy. In these respects it is claimed that there is an illegal suspension of the power of alienation.
This question will be examined first in respect to the real estate. We are of opinion that under the provisions of the Revised Statutes (1 R.S., 723, §§ 15, 16, 726, § 37) a remainder in fee in real estate, to take effect upon the termination of two lives in being at the time of the creation of the estate, may be limited to a person not in being at that time; that a direction to accumulate the rents during the minority of such remainder-man, and for his benefit if he should be in esse and an infant when the precedent estate ceases, is also authorized. And that in such a case a further contingent remainder, in favor of a person not in being at the creation of the estate, may be limited to take effect in the event that the person to whom the remainder is first limited shall die under the age of twenty-one years. *Page 375
These dispositions are not subject to the objection that they suspend the power of alienation beyond the prescribed period. The suspension must terminate at the expiration of two lives in being, and the further term of suspension caused by the contingent limitation which is to take effect upon the death, during the minority, of the child to whom the remainder in fee is first limited. This is within the limits intended and permitted by the exception contained in section 16. The revisers, by means of that section, intended to adopt the English limit of suspension, viz., lives in being and twenty-one years afterward, with a modification reducing the lives to two and providing that the twenty-one years, instead of being an absolute term, must depend upon the continuance of the minority of the person to whom the defeasible remainder in fee is limited. (See Revisers' Notes, 3 R.S., 571, 572, 2d ed; 5 Statutes at Large, 306, 307.)
The suspension being created by the contingent limitation of the fee, the accumulation during the minority of the first person designated as taker does not add to the term of suspension, and it is sanctioned by the provisions of section 37. It commences within the time permitted for the vesting of future estates. A future estate must vest on the expiration of two lives in being at the time of the creation of the estate. The accumulation commences at a time which might lawfully be appointed for the vesting of a future estate, and therefore within the time permitted for the vesting of such estates, and it terminates with the minority of the beneficiaries. The sections harmonize with each other, and section 37 permits an accumulation of rents during precisely the same term which, by section 16, is permitted to be added to the period of suspension of alienation. These sections, read in connection, precisely cover the case of a disposition of the ultimate fee, after the expiration of two lives, in favor of a minor, an accumulation during his minority, and a contingent remainder over, if he should die during minority.
This accumulation also falls clearly within the limitations of the third class of accumulations allowed by the statute of *Page 376 40 Geo. III, chap. 98, which it was the avowed purpose of our revisers to adopt, viz.: "During the minority of any person or persons who, under the deed or will would, if then of full age, be entitled to such rents and profits." (See Revisers' Notes, 3 R.S., 2d ed., p. 578.)
The objection that the persons to whom the remainder in fee is first limited, and those to whom the contingent remainder over in fee is limited, are not persons in being at the time of the creation of the estate (viz., the time of the death of the testator), is not supported by any provision of the statute. There is no prohibition against the limitation of such estates to persons not in being. The requirement that the two lives, during which the suspension is allowed in all cases, should be those of persons in being at the time of the creation of the estate, is plainly expressed in the general provision. But the further suspension allowed by the exception is not stated to be upon any such condition. Such a restriction would be inconsistent with the purpose of the exception, and so limit its operation as to render it of but little avail.
Neither do the provisions authorizing accumulations require that the minor for whose benefit the accumulation is to be made should be in being at the death of the testator, unless the accumulation is to commence at his (the testator's) death. If it is to commence at a subsequent period, the beneficiary must be in being at the time of the commencement of the accumulation, otherwise it cannot be said to commence during the minority of the person for whose benefit it is directed. An accumulation for the benefit of an unborn child, to commence after the birth of the child, and to terminate with his minority, is lawful, provided that it is also to commence within the time permitted for the vesting of future estates, that is to say, on the expiration of two lives in being; but an accumulation for the benefit of an unborn child, to commence before his birth, is not permitted under any circumstances, and this was the objection to the validity of the accumulations in the cases of Haxtun v.Corse (2 Barb. Ch., 518), and Kilpatrick v. Johnson (15 N Y, 322). *Page 377
It is also requisite that the accumulation be for the benefit of the minor during whose minority it is to commence and continue. A mere contingent limitation of the estate in favor of the minor on his coming of age, would not be sufficient to sustain a trust or direction for accumulation during his minority; and this renders it necessary to examine whether, under the provisions of the will, the infant children of the testator's daughter, would, on the death of the daughters, have such an estate in the lands that the accumulations can be held to be for their benefit within the intent and meaning of the statute.
This question is suggested by the form of the devise, and will now be considered not only with regard to the accumulations, but also with regard to the contingent limitation over of the fee in the event of the death of the daughters' children during minority.
The testator, instead of devising the estate directly to the children of the daughters, on the death of the daughters, and directing the income to be accumulated during the minority of the children, with remainder over in case of the death of such children in infancy, has in form continued the trust after the death of each daughter during the minority of her children respectively, for the purpose of accumulation, and directed that each child be paid his or her share of the principal on coming of age, with contingent remainder over in fee in case such child die under age.
In case of a daughter dying without issue her surviving, or in case at her death all her children are of full age, no question will arise, for in each of these cases the fee vests absolutely on the death of the widow and daughter.
But in case a daughter should die after the death of the widow and leave infant children, then it is necessary to ascertain the nature of the estate these children will take on the death of their mother.
The first question is whether the remainders to the issue of the daughters on the death of the daughters are remainders in fee within the meaning of section 16, so that a contingent *Page 378 remainder in fee could lawfully be limited upon the estate of each grandchild, to take effect on his or her dying under age.
The direction to the trustees to pay over the principal of the share of each grandchild on his or her attaining the age of twenty-one years is a sufficient devise of the property and will vest it in the devisee. (Gilman v. Reddington, 24 N.Y., 11,16.)
But it is said that as to each sub-share of a grandchild, the legal estate is vested by the trust for accumulation in the trustees until the majority of the grandchild, and therefore the remainder to the grandchild is merely a contingent remainder, dependent upon the contingency of the child being living at the termination of the trust.
That question does not necessarily affect the validity of the contingent remainder over in case of the death of the grandchild in minority. Assuming the remainders to the grandchildren to be contingent, yet they are remainders in fee which must become absolute as to each grandchild on his arriving at age, or the estate must vest absolutely in some one else if he die in minority, and the period of suspension is not affected by the question whether the remainders to the grandchildren are vested or contingent. Section 16 does not in terms require that the first remainder should be vested; it requires only that both remainders be in fee, so that within the period of a minority after two lives the estate shall vest absolutely in fee.
This appears to be the object of the section; and it not being necessary, in order to effect that object, to add anything by construction to its terms, we must hold that, under section 16, a contingent remainder in fee may be limited on a prior remainder in fee, vested or contingent, provided one or the other of the remainders in fee must vest in possession at or before the expiration of the minority of the person first designated. And this view is sustained by referring, in connection with section 16, to section 25 of the same article, which authorizes the limitation of a contingent remainder in fee upon a prior contingent remainder in fee. (See revisers' notes to § 25.) This *Page 379 section provides that "two or more future estates may be created, to take effect in the alternative, so that, if the first in order shall fail to vest, the next in succession shall be substituted for it, and take effect accordingly." (See, also, Egerton v.Brownlow, 1 House of Lords, p. 1.)
Though both remainders be contingent, one of them must vest within the prescribed period, and the estate is not rendered inalienable any longer, in case the first is contingent, than if it had been vested and defeasible.
The legislature having permitted the estate to be made inalienable during the minority of the first remainder-man, by means of a contingent remainder over, it is wholly immaterial, with reference to the question of suspension of alienation, whether, during such permitted period of inalienability, an estate be vested or not in the person first designated. But, though that question may be immaterial, with reference to the validity of the remainders to the grandchildren, and the contingent remainders over in case of their death in infancy, it materially affects the question of the validity of the trusts or directions for accumulation during the minority of those grandchildren.
It has been shown that the conditions of the statute, as to the time for the commencement and termination of the accumulation, are not violated.
The questions now to be considered are, first, whether, at the time the accumulation is directed to commence, the grandchildren will have such an estate or interest in the land that the accumulation may be said to be for their benefit; and,secondly, whether any valid objection arises from the accumulation being made under a trust, instead of a mere direction or power.
If the estate or interest of the infants, present or future, in the land or the income, is sufficient to sustain the accumulation, there seems to be no valid objection to the trust during their minority. The trust is one of those expressly authorized.
The legislature having permitted the estate to be made inalienable during the minority of the first remainder-man *Page 380 (who, as to each sub-share, will be the testator's grandchild), by means of the contingent remainder in fee, it is wholly immaterial, with reference to the question of suspension of alienation, whether, during that period of permitted inalienability, the legal title is vested in the infant or in trustees for his benefit; and if the infant has such an interest that the accumulation can be said to be for his benefit, the statute permits the accumulation during his minority; and it is difficult to see any objection to such permitted accumulation being effected by means of a trust.
The interest of the infant is, therefore, the only material point of inquiry. If his estate depended upon a mere contingency, an accumulation during his minority could not be said to be for his benefit, as he might never enjoy it, and would not be vested even with the right to the future enjoyment of it, until the contingency had arisen.
But a devise of lands to an infant, when he shall become of age, with remainder over, if he die under age, creates a vested, and not a contingent, estate in the infant. It is defeasible by condition subsequent. His coming of age is not a condition precedent to the vesting of his estate. Where nothing is interposed between the infant and his enjoyment of the possession of the estate, except his own minority, he has a vested estate, subject to be defeated by the condition subsequent of his dying under age.
This rule is well-settled in regard to real estate, though it is different, in some respects, as to personal property. (Doe v. Moore, 14 East, 604; Roper on Legacies, 571; Roome v.Phillips, 24 N.Y., 463; Paterson v. Ellis, 11 Wend., 259;Everitt v. Everitt, 29 N.Y., 76, 82, 97; Phipps v.Ackers, 9 Cl. and Finnelly, 583; Kane v. Gott, 24 Wend., 641; Phipps v. Williams, 5 Simons, 44; 2 Redfield on Wills, 592-641; Gilman v. Reddington, 24 N.Y., 16.)
The infant children of any daughter, who may survive their mother, will, therefore, have a vested estate in the lands, to take effect in actual enjoyment upon their attaining their *Page 381 majority, and defeasible in case of their death before attaining twenty-one.
This is a sufficient title to sustain the accumulation, during their minority, for their benefit. It fulfills precisely the conditions of the third enumeration of the statute of 40 Geo. III, chap. 98, which the revisers intended to sanction and adopt, viz.: "During the minority of any person or persons who, under the deed or will directing the accumulation, would, if then of full age, be entitled to such rents and profits."
And the purpose of this accumulation is precisely that for which the revisers intended to provide, as appears by their statement, in their notes, that the purpose for which an accumulation ought to be sanctioned is for the benefit of infants entitled to the next eventual estate. (3 R.S., 578, 2d ed.)
These minors come within both of the definitions above referred to. At the time the accumulation is directed to commence they would, if of age, be entitled to the rents and profits, and they will also, at that time, be entitled to the next eventual estate. It is not necessary that a present estate in possession be vested in them during their minority, to authorize an accumulation for their benefit during such minority.
These views lead to the conclusion that, as to the real estate, the trusts to accumulate the rents and profits of the sub-shares during the minority of the children of the daughters, and the limitations over in case of the death of such children under age, are valid.
As to the personal estate, we have come to a different conclusion:
The limitation over in case of the death of a daughter's child during minority suspends the absolute ownership of each daughter's share of the personal property beyond the lives of the widow and daughter, and during the minority of the daughter's children, if she leaves infant children her surviving; and we think that the exception in section 16, which permits that suspension in case of real estate, is not applicable to personal property. *Page 382 Section 15 of title 2, chap. 1, part 2, R.S., relating to real estate, declares that the absolute power of alienation shall not be suspended longer than two lives in being, except in thesingle case mentioned in section 16.
Section 1 of title 4 of chap. 4, relating to personal estate, declares that the absolute ownership of personal property shall not be suspended longer than two lives in being, and omits the exception which is contained in sections 15 and 16; and section 2 provides that, in all other respects, limitations of future or contingent interests in personal property shall be subject to the rules prescribed in relation to future estates in lands.
Section 1 covers the whole subject of suspension of ownership, and limits it to two lives absolutely. This clearly indicates an intention on the part of the legislature, that the further term of suspension allowed by section 16 should not be allowed as to personal property, but should be confined to real estate; and that in all respects other than the suspension of ownership, limitations of future interests in personalty should be governed by the same rules as estates in lands. The only difference made by the Revised Statutes between limitations of future estates in lands and future interests in personal property, consists in this provision as to the time of suspension. As to real estate, it is two lives in being and a minority; as to personalty, the limit is absolute to two lives in being.
The limitations over in case of the death of a daughters child during minority must, therefore, be declared void as to the personal estate.
The trust for accumulation during the minority of the daughters' children is also void. An accumulation of the income of personal estate, if it is to commence at any period subsequent to the death of the testator, must be directed to commence "within the time allowed in the first section of this titlefor the suspension of the absolute ownership," which time is "during the continuance and until the termination of not more than two lives in being" at the death of the testator. (1 R.S., 773, § 1; 774, § 2.) *Page 383
In the case of real estate the language is "within the time permitted for the vesting of future estates."
That provision allows an accumulation to commence at a time when a future estate might be allowed to vest, viz.: Immediatelyafter the termination of two lives; but as to personal property it must commence within the period which is allowed to precede the vesting, viz.: "During the continuance and until the termination" of the two lives, and therefore, before the expiration of the second life. As these accumulations are not to commence until after the death of the widow and daughter of the testator, they are not within the provisions of the statute, and cannot be upheld.
The result of declaring void these directions for accumulation and the limitations of contingent remainders in the personalty after the death of the testator's widow, will be to give to the infant children of any daughter who may survive their mother the absolute title to so much of their sub-shares as may consist of personal property, and the right to the immediate enjoyment of the income from the time of their mother's death. (Leonard v.Burr, 18 N.Y., 103; 2 Washburn on Real Prop., 2d ed., 357; 1 R.S. 726, § 40.)
It does not seem to us, however, that the failure of these trusts or directions for accumulation during the minority of the daughters' children, and of the contingent limitations over in case of their death in infancy, will so far affect the general scheme of the testator as to render it necessary to declare the whole of the sixteenth clause void. A contingent ulterior limitation of a legal estate may be held void in such a case without impairing the validity of the other dispositions of the will. The general rule is that where the effect of such a limitation over is to abridge or defeat the prior estate, the result of such contingent limitation being held void for remoteness is that the person whose estate would be defeasible, if such contingent limitation were valid, takes the estate discharged of the condition or limitation over. (2 Washburn on Real Property, 2d ed., 357; Leonard v. Burr, 18 N.Y., 103;Church v. Grant, 3 Gray, 156. *Page 384
And it is difficult to discover any principle which forbids the sustaining of the general intent of the testator by cutting off a void trust which is separable from other valid trusts, in a case where the trust which is defeated is independent of the other dispositions of the will and subordinate to them and is not an essential part of the general scheme.
In this case it seems to us that it is not essential to the testator's general scheme that this trust, even if it be treated as a trust and not as a power, should be effectuated. It is in substance a trust or direction for the accumulation of so much of the sub-shares of the infant grandchildren as shall not be needed for their support during their minority. It is separable from the other trusts and dispositions, and no important practical change is effected by vesting the property absolutely in the infants during their minority. The failure of this particular trust or direction should not therefore invalidate the residue of the will. (De Kay v. Irving, 9 Paige, 527, 528, 529; affirmed, 5 Den., 646; Darling v. Rogers, 22 Wend., 438; Van Vechten v.Van Vechten, 8 Paige, 103; Kane v. Gott, 24 Wend., 666;Savage v. Burnham, 17 N.Y., 576; Oxley v. Lane,35 N.Y., 349; Harrison v. Harrison, 36 N.Y., 543; Schettler v.Smith, 41 N.Y., 328.)
The trust to accumulate a portion of the surplus income during the life of the widow, is conceded to be void.
But its invalidity does not so far affect the general scheme and intent of the testator as to require that the whole disposition of the residuary estate be declared void. This provision for accumulation appears upon its face to have been inserted to meet a contingency which might or might not occur, and to dispose of a surplus, the existence of which was wholly uncertain. If the dispositions of the property which the testator calculated would pass under his will can be sustained, his intentions in respect to that property should not be frustrated, because he has failed to make a valid disposition of a surplus which he presumed might possibly arise.
The income thus directed to be accumulated during the life of the widow must be disposed of as directed by 1 R.S., 726, *Page 385 § 40. That is to say, it belongs to the persons presumptively entitled to the next eventual estate. The intent of the statute, and not of the testator, must govern the disposition of this undisposed of fund. Who are the persons presumptively entitled to the next eventual estate which is to follow the trust estate for the life of the widow?
As to the testator's sons, there is no difficulty in determining that they are presumptively entitled to the next eventual estate in six-twelfths; but as to the other six-twelfths there is more difficulty.
The statute does not say the ultimate, but the next eventual estate. That is, the estate which is to take effect upon the happening of the event which terminates the accumulation. Those who presumptively will be entitled to receive the rents and profits when the period of accumulation ends, are entitled to anticipate the event which is to terminate the accumulation and to take at once the rents and profits which are undisposed of or unlawfully directed to be accumulated.
If upon the death of the widow a life estate had been given to the daughters, they would, under this section, be entitled to all rents accruing during the widow's life and not disposed of or lawfully directed to be accumulated. As to those rents, the benefits of their life estate would be anticipated and take effect before the time appointed by the will. But by reason of the trusts for the daughters, the daughters take no estate. Their trustees, however, take the estate for them. There are successive trust estates: first, of the whole property during the widow's life, and, secondly, of two-twelfths for each daughter during her life. On the termination of the trust estate created for the life of the widow, we think that a new trust estate arises in two-twelfths for the life of each daughter, and that that is the next eventual estate within the meaning of the statute; that in legal effect the trust estate for each daughter is as distinct from the trust estate during the widow's life as if on the termination of the latter estate new trustees had been appointed to take the shares for the daughters; and that as no accumulation is directed during the lives of the *Page 386 daughters, but the whole income is to be applied to their use, the spirit and intent of the statute is complied with by declaring the trustees for each daughter entitled from the testator's death to two-twelfths of the net income not lawfully disposed of during the widow's life, including all arrearages and accumulations of income heretofore received by the executors; such income and accumulations heretofore accrued and received to be paid over to the daughters respectively who are living, and the income which is to accrue to be applied to their use semi-annually, or as the same may be received; the share of the daughter who is deceased to be paid to her issue.
Except as to this direction for accumulation, the trust for the life of the widow must be declared valid. It causes no undue suspension of the power of alienation or of absolute ownership. Although the beneficiaries are more than two, yet the trust is limited in its duration to the life of the widow, and as to each beneficiary the beneficial interest is for his life or a shorter term; similar trusts have repeatedly been sustained. (Gilman v.Reddington, 24 N.Y., 19; Harrison v. Harrison,36 N.Y., 543; Savage v. Burnham, 17 N.Y., 569.)
There is no direction in the will that, in case of the death of a son or daughter during the widow's life, that portion of the income which is directed to be paid to the sons and the daughters during the life of the widow shall be paid to their issue. Such a direction was held valid in the case of Gilman v. Reddington (24 N.Y., 19); but not being contained in this will, it cannot be implied; nor can we hold that any greater interest than one for life, in the income, can be given to any beneficiary under a trust of this description. We must, therefore, hold that on the death of a son or a daughter during the widow's life, that portion of the income to which the son or the daughter so dying would have been entitled if living, becomes undisposed of up to the time of the death of the widow, and belongs, by virtue of section 40, to the presumptive owners of the next eventual estate; and our conclusion is, that such income is to be regarded as a portion of the income of the share of the son or daughter so *Page 387 dying, and will belong to the parties presumptively entitled to the next eventual estate in that share.
Under this rule, the $1,500 per annum and the share of surplus income which would have been payable to Mrs. Lockwood during the life of the widow, belong to her children from the time of her death.
The subject of requiring Mr. Lockwood to give security for the funds which he may receive as administrator of his wife has been considered by us, and we have come to the conclusion as to any sums which he may receive as such administrator, to the principal of which his children will be entitled at his death under the laws of Connecticut, the direction as to security contained in the judgment of the General Term should be retained. (See Clark v. Clark, 8 Paige, 152.)
We also think, that so much of the judgment as declares valid the bequest of $5,000 to Yale College should be affirmed. The direction to pay to the treasurer is a good gift to the college, the college having been shown to be capable of taking. (Emery v. Hill, 1 Russ., 112; De Witt v. Chandler, 11 Abb. Pr., 459; Hornbeck v. Am. Bible Society, 2 Sandf. Chy., 133, and cases cited.)
The college is a foreign corporation, and, according to the laws of this State, the testator had power to bequeath to such a corporation, it being authorized by the laws of its own State to take.
It is exceedingly doubtful whether the request to the trustees of the college to accumulate this fund, and after it has reached $30,000, to apply so much of it as will continuously educate one lineal descendant of the testator bearing his paternal name, is sufficient to raise a trust. The testator does not use imperative words, as in other clauses of the will, but mere precatory words. Such words, when addressed to a party having an interest in the fund, are of much less force than when addressed to one holding merely in a trust capacity, and they will not be held to raise a trust when either the subject affected, or the object to be benefited is uncertain.
In this bequest the amount to be applied to the benefit of *Page 388 the testator's descendant is not defined; the event upon which the request is to take effect is uncertain. It is not stated whether the beneficiary must bear the testator's paternal name as a surname; should there be several claimants answering the description, there is no means of determining between them. The period at which the request is to take effect is exceedingly remote, and depends on the contingencies of the fund reaching the amount named, of the existence after that time of such a descendant as is described, and of his or his guardian's desiring that he be educated at the college.
If the request as to the education of the testator's descendant does not constitute a trust, the consequence is that there is a simple request to the legatee to accumulate for its own benefit, no other person being interested in the fund. Such a request cannot be construed as raising a trust. A bequest of a sum of money to A, with a request that he will save and accumulate it for himself, raises no trust. When the words of request are not operative as a trust, the legatee takes unconditionally. (Gilbert v. Chapin, 19 Conn., 342; Harper v. Phelps,21 Conn., 257, and cases there cited; Hood v. Oglander, 34 L.J., Ch., 528; Shaw v. Lawless, 5 Clark and Finnelly, 129; Sale v. Moore, 1 Sim. R., 534; Pennock's Estate, 20 Penn., 268; 48 id., 466; Mayor, etc., of Gloucester v. Wood, 3 Hare, 142.)
These are questions, however, which must necessarily be determined by the courts of the State in which the corporation legatee is situated. The fund is to go there, and be there administered. The will of the testator, so far as the courts of this State can act upon it, is fully executed, when the money is paid to the proper officer of the foreign corporation; and there is no law of this State prohibiting gifts to such foreign corporation. Though the laws of the State of that corporation may permit it to hold and administer property in perpetuity, or to accumulate it, the local policy of this State upon that subject is not interfered with, by allowing property of our citizens to pass to such foreign corporation, *Page 389 and be administered by it in such foreign State according to its own laws. (Fordyce v. Bridges, 10 Beavan, 105; S.C., 2 Phillips, 497; Vansant v. Roberts, 3 Maryl., 119;Chamberlain v. Chamberlain, post 424
A judgment should be settled on notice in conformity with this opinion.
Concurred in by all the judges, except CHURCH, Ch. J. who dissents from so much of the opinion as holds the bequest to Yale College valid.